Order from Chaos? Tribunal Reform in New Zealand
In November 2006, the New Zealand Law Commission and the Ministry of Justice launched a joint program of tribunal reform in New Zealand. The aim of the project was to ‘provide a final report on the issues involved in establishing a unified tribunal structure, including the operational implications of the incremental inclusion of tribunals in the new structure’1 and to ‘recommend a structure for existing tribunals as well as a framework for the establishment of tribunals in the future’.2 This unusual joint endeavour was developed in incremental steps through a series of reports published by both the Law Commission and the Ministry.3 The most recent of these was published by the Law Commission late in 2008 and it is this document which forms the basis for the following discussion.4 It is important to note at this point that this report, although relatively comprehensive, was not intended to be the final document.5 Although the project made clear the direction that the Law Commission intended to pursue (and some elements of the reform had already been settled by Cabinet) it still remained at the stage of recommendation, with further reports and discussion expected. At the time of writing this paper, however, it would appear that this 2008 report is as far as we are likely to get in the near future as the current government has put tribunal reform on ice. Given the current state of the tribunal sector in New Zealand, which is explored below, this is a disappointing but not entirely surprising development. Although the tribunal system in New Zealand has been ripe for reform almost since the first tribunal was established, successive attempts to introduce coherence to the ‘system’ have foundered in the difficult waters of the legislative process. The failure to properly consider the place of tribunals in the New Zealand legal system is an indictment of the political system rather than the tribunals themselves. From their humble (and relatively late) beginnings in 1908, tribunals now handle the vast majority of legally adjudicated disputes in New Zealand, particularly in the field of administrative law. Most grievances against the state will be addressed, at least initially, by a specialist adjudicative institution outside the formal court structure.6 Despite their fundamental importance to the delivery of justice in New Zealand, tribunals remain a largely forgotten element of the legal system, at least amongst academics. In academia, the tribunal is an unfashionable backwater, with few New Zealand texts giving more than the most cursory coverage of these institutions.7 It should be no surprise then, given their astonishingly low profile in New Zealand, that tribunals remain largely unloved, unnoticed and unreformed institutions. This article is a small attempt to turn the academic spotlight onto this crucial element of New Zealand’s legal system, in the light of the Law Commission’s proposals for reform. Although this article uses the Law Commission’s proposals as its context, its underlying themes are more generic. The Law Commission’s approach (influenced by the Ministry of Justice) was to define tribunals as a single and distinct sector of the legal system. This sector, thus defined, was subject to a series of overarching reform proposals to create a single tribunal structure and a single legislative framework. The umbrella approach to tribunals, which is such an integral part of the Law Commission’s proposals, is also reflected in the proposal to create a pan-tribunal set of procedures aimed at giving greater coherence to the tribunal ‘system’. This article argues that although the work of the Commission includes a number of positive proposals, they reflect a fundamental misunderstanding of the place and role of tribunals in the New Zealand legal system. Rather than seeing tribunals as a discrete system in need of overall reform, it is argued that individual tribunals should be seen as part of specific systems of specialist dispute resolution. For this reason they need to be considered in the context of other dispute resolution and dispute avoidance mechanisms (both judicial and non-judicial). This failure to put tribunals in their proper place is a phenomenon repeated (although to varying degrees) in most common law jurisdictions and the approach of the Law Commission reflects such overseas experiences. However, recent developments in the UK as a result of the Leggatt Review of Tribunals8 and the later White Paper on Administrative Justice have seen a slow recognition that tribunals are part of a system that needs to be focused primarily on getting decisions right in the first instance rather than putting them right after the event.9 It is the submission of this author that New Zealand, and indeed most other jurisdictions following the Westminster model, would benefit from such a return to first principles in consideration of the role of tribunals. Such a functional analysis would lead both to a better understanding of the role of tribunals in the legal system and allow us to construct more effective systems of dispute resolution (and avoidance), particularly in the field of administrative law. It may also lead us to the conclusion that a tribunal is not the most effective or efficient place to ensure that these disputes are resolved and drive us to consider why they occur in the first place.